AR20140002140

IN THE CASE OF: Mr.

BOARD DATE: 6 February 2015

CASE NUMBER: AR20140002140
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.

Presiding Officer

I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests to upgrade the characterization of his service from under other than honorable to general, under honorable conditions or honorable.

2. The applicant states, in effect, he was not provided the opportunity to amend this dischargehe was not afforded any type of counseling for his mental health from being in combat areas. He was hastily separated from active military service. He admits failing a urinalysis upon returning from overseas, Iraq, Kuwait, and Turkey. He was young and was facing many unresolved issues from his experiences in the war torn nations. He needed help and direction, because of his youth and inexperience, and realized he made a mistake. Before the incident, he was never in any trouble. Since his discharge, he has led a productive life working, going to school, and being a tax paying citizen. He has never had any problems with the law and has been a law abiding citizen.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 27 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 18 August 2004
d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, paragraph 14-12c, JKQ,
RE-3
e. Unit of assignment: 588th Maint Co, 19th Maint Bn, 214th FA Bde, Fort
Sill, OK
f. Current Enlistment Date/Term: 15 August 2002, 4 years
g. Current Enlistment Service: 2 years, 0 months, 4 days
h. Total Service: 2 years, 0 months, 4 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 92A10, Automated Logistical Specialist
m. GT Score: 105
n. Education: HS Graduate
o. Overseas Service: Southwest Asia
p. Combat Service: Iraq (dates-NIF)
q. Decorations/Awards: NDSM; ASR, GWOTSM
r. Administrative Separation Board: No, waiver based on acceptance of offer to plead guilty
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 15 August 2002, for a period of 4 years. He was 19 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 92A10, Automated Logistical Specialist. His record documents no acts of valor or significant achievement. He completed 2years and 4 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 14 July 2004 (as acknowledged by the applicant), the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), specifically for: two violations of Article 112a, UCMJ, wrongful use of marijuana.

2. Based on the above misconduct, the unit commander recommended an under honorable other than conditions discharge and advised the applicant of his rights.

3. On 9 June 2004, court-martial charges were being preferred against the applicant for two violations of Article 112a, UCMJ, for wrongfully using marijuana. The applicant submitted an Offer to Plead Guilty on 23 June 2004, agreeing to plead guilty to all charges and their specifications in a summary court-martial; and agreeing to waive his right to an administrative separation board and accepting an under other than honorable conditions discharge, should a separation action be initiated against him under Chapter 14, AR 635-200.

4. On 23 June 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and submitted a statement on his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.

5. The separation authoritys decision memorandum is not available and the presumption of government regularity prevails in the discharge process. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicants signature. The DD Form 214 indicates the applicant was discharged from the Army on 18 August 2004, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKQ, and an RE code of 3.

6. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Charge Sheet with a charge of violating Article 112a, UCMJ, and two specifications of wrongfully using marijuana (040315-040414 and 050416-040525), indicates the charge was preferred on 9 June 2004.

2. Offer to Plead Guilty, dated 23 June 2004, rendered by the applicant indicates he was pleading guilty to all charges and specifications, and if a separation action is initiated against him and an under other than honorable conditions discharge is recommended, he offered to waive his right to a board hearing and personal appearance before the board in exchange for the acceptance of his offer to plead guilty and for the convening authority to refer his court-martial case to a summary court-martial. The foregoing offer was accepted by the brigade commander.

3. Article 15, dated 14 August 2003, for disobeying an NCO (030715). The punishment consisted of a reduction to the grade of E-1, forfeiture of $268, and 14 days of extra duty and restriction, (CG).

4. There are two positive urinalysis reports:

a. for a specimen collected on 25 May 2004the basis for the collection is not provided and
b. for a specimen collected on 12 March 2004, a PO Probable Cause directed urinalysis which reported being positive for marijuana.

5. Six negative counseling statements, dated between 9 March 2004 and 23 April 2004, for being on restriction; wrongfully using marijuana; disobeying a direct order; failing to obey an order or regulation; failing to be at his appointed place of duty at the prescribed time; being AWOL; and being removed from restriction and not being allowed to wear civilian clothes at anytime.

6. Report of Mental Status Evaluation, dated 27 April 2004, indicates the applicant was psychiatrically cleared for any administrative or judicial action deemed appropriate by the applicants command. The report did not provide any diagnosis.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY:

The applicant provided none.

REGULATORY AUTHORITY:

1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.

2. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

3. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldiers separation specifically allows such characterization.

4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKQ” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, misconduct (serious offense).

5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “JKQ” will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants record of service, his military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The record confirms the applicants discharge was appropriate because the quality of his service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant, by violating the Army’s policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army’s drug policies. By the serious incidents of misconduct and abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting a general, under honorable conditions or an honorable discharge. The applicants record of service was marred by an Article 15 action for violations of the Uniform Code of Military Justice and numerous negative counseling statements.

3. The applicant provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that the applicants service mitigated the misconduct or poor duty performance.

4. The applicant contends he was not afforded any type of counseling for his mental health issues from being in combat areas. However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis or any mental health issues, and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.

5. The applicant contends that he needed help and direction, because of his youth and inexperience, and realizing he made a mistake. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. Further, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of nonjudicial punishment. The applicant failed to respond appropriately to these efforts.

6. The applicant contends that since leaving the Army, he has led a productive life working, going to school, and being a tax paying citizen. He has never had any problems with the law and has been a law abiding citizen. The applicants post-service accomplishments have been noted as outlined on the application. However, in review of the applicants entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.

7. The records show the proper discharge and separation authority procedures were followed in this case.

8. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 6 February 2015 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change: 0 No Change: 5
Reason Change: 0 No Change: 5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214: No
Change Characterization to: No Change
Change Reason to: No Change
Change Authority for Separation: NA
Change RE Code to: NA
Grade Restoration to: NA
Other: NA

Legend:
AMHRR – Army Military Human Resource Record FG – Field Grade IADT Initial Active Duty Training RE – Reentry
AWOL – Absent Without Leave GD – General Discharge NA – Not applicable SCM- Summary Court Martial
BCD – Bad Conduct Discharge HS – High School NIF – Not in File SPCM – Special Court Martial
CG – Company Grade Article 15 HD – Honorable Discharge OAD – Ordered to Active Duty UNC – Uncharacterized Discharge
CID – Criminal investigation Department MP Military Police OMPF – Official Military Personnel File UOTHC – Under Other Than Honorable Conditions
ADRB Case Report and Directive (cont) AR20140002140

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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